Legal cases can be termed “hard” cases if they raise issues that are highly controversial, issues about which people with legal training disagree. The ongoing debate over the completeness of the law usually concerns the extent to which such hard cases are legally determinate, or decidable according to existing law.
H. L. A. Hart’s The Concept of Law is still the clearest and most persuasive statement of both the standard theory of hard cases and the standard theory of law on which it rests. For Hart, the law consists of legal rules formulated in general terms; these terms he calls “open textured,” which means that they contain a “core” of settled meaning and a “penumbra” or “periphery” where their meaning is not determinate. For example, suppose an ordinance prohibits the use of vehicles in a park.
“Vehicle” has a core of meaning which includes cars and motorcycles. But, Hart claims, other vehicles, such as bicycles, fall within the peripheral meaning of “vehicle,” so that the law does not establish whether they are prohibited. There will always be cases not covered by the core meaning of legal terms within existing laws; Hart considers these cases to be legally indeterminate. Since courts cannot decide such cases on legal grounds, they must consider nonlegal (for example, moral and political) grounds, and thereby exercise judicial discretion to make, rather than apply, law.
In Ronald Dworkin’s view the law is richer than Hart would grant; he denies that the law consists solely of explicit rules. The law also includes principles that do not depend for their legal status on any prior official recognition or enactment. Dworkin claims that many cases illustrate the existence of legal principles that are different from legal rules and that Hart’s “model of rules” cannot accommodate. For Dworkin, legal rules apply in an all-or-nothing fashion, whereas legal principles do not: they provide the rationale for applying legal rules. Thus, because Dworkin thinks there is law in addition to legal rules, he thinks that legal indeterminacy and the need for judicial discretion do not follow from the existence of open texture in legal rules.
It would be a mistake, though, to dispute Hart’s theory of hard cases on this basis alone. If Hart’s claim about the “open texture” of general terms is true, then we should expect to find legal indeterminacies even if the law consists of principles in addition to rules. Legal principles, as well as legal rules, contain general terms that have open texture. And it would be absurd to suppose that wherever the meaning of a legal rule is unclear, there is a legal principle with a clear meaning.Most interesting and controversial cases will occur in the penumbra of both rules and principles.
1. Which one of the following best expresses the main idea of the passage?
(A) The law will never be complete because new situations will always arise which will require new laws to resolve them.
(B) The most difficult legal cases are those concerning controversial issues about which trained legal minds have differing opinions.
(C) The concept of legal principles does not diminish the usefulness of the concept of the open texture of general terms in deciding whether hard cases are legally determinate.
(D) The concept of legal principles is a deleterious addition to the theory of law since any flaws exhibited by legal rules could also be shared by legal principles.
(E) The inherent inconsistency of terms used in laws provides a continuing opportunity for judges to exercise their discretion to correct defects and gaps in the law.
2. According to the passage, the term “legal principles” as used by Dworkin refers to
(A) a comprehensive code of ethics that governs the behavior of professionals in the legal system
(B) explicit analyses of the terms used in legal rules, indicating what meanings the terms do and do not cover
(C) legal doctrines that underlie and guide the use of accepted legal rules
(D) legal rules that have not yet passed through the entire legislative procedure necessary for them to become law
(E) the body of legal decisions regarding cases that required judicial discretion for their resolution
3. Which one of the following expresses a view that the author of the passage would most probably hold concerning legal principles and legal rules?
(A) Legal rules are applied more often than legal principles when a case involves issues about which legal professionals disagree.
(B) Both legal rules and legal principles areofficially recognized as valid parts of the law.
(C) Hart’s “model of rules” has been superseded by a “model of principles” that sheds light on legal determinacy.
(D) Legal principles are just as likely as legal rules to have terms that have both core and peripheral meanings.
(E) Legal principles eliminate the need for judicial discretion in resolving the problemsgenerated by the open texture of legal rules.
4. It can be inferred that the author of the passage regards Hart’s theory of hard cases and the theory of standard law as
(A) exhaustive
(B) worthy of respect
(C) interesting but impractical
(D) plausible but unwieldy
(E) hopelessly outmoded
5. In the passage, the author is primarily concerned with
(A) outlining the problems that might be faced by a legislature attempting to create a complete body of law that would prevent judges from making rather than applying the law
(B) justifying the idea that “hard” cases will always exist in the practice of law, no matter what laws are written or how they are applied
(C) presenting evidence to support Dworkin’s idea that legal rules apply in an all-or-nothing fashion, whereas legal principles apply in more sophisticated ways
(D) critiquing the concept of the open texture of legal terms as a conceptual flaw in Hart’s otherwise well-regarded book
(E) demonstrating that Dworkin’s concept of legal principles does not form the basis for a successful attack on Hart’
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